GRAND CHAMBER CASE OF SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA (Applications nos. 27996/06 and 34836/06) JUDGMENT STRASBOURG 22 December 2009 This judgment is final but may be subject to editorial revision. SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA JUDGMENT 1 In the case of Sejdić and Finci v. Bosnia and Herzegovina, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President, Christos Rozakis, Nicolas Bratza, Peer Lorenzen, Françoise Tulkens, Josep Casadevall, Giovanni Bonello, Lech Garlicki, Khanlar Hajiyev, Ljiljana Mijović, Egbert Myjer, David Thór Björgvinsson, George Nicolaou, Luis López Guerra, Ledi Bianku, Ann Power, Mihai Poalelungi, judges, and Vincent Berger, Jurisconsult, Having deliberated in private on 3 June and 25 November 2009, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1. The case originated in two applications (nos. 27996/06 and 34836/06) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two citizens of Bosnia and Herzegovina, Mr Dervo Sejdić and Mr Jakob Finci (“the applicants”), on 3 July and 18 August 2006 respectively. 2. The applicants complained of their ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina on the ground of their Roma and Jewish origin. They invoked Articles 3, 13 and 14, Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12. 3. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 March 2008 a Chamber of that Section decided to give notice of the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility. On 2 SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA SEPARATE OPINIONS 10 February 2009 the Chamber, composed of the following judges: Nicolas Bratza, Lech Garlicki, Giovanni Bonello, Ljiljana Mijović, David Thór Björgvinsson, Ledi Bianku and Mihai Poalelungi, and also of Fatoş Aracı, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 4. The parties filed written observations on the admissibility and merits. Third-party comments were also received from the Venice Commission, the AIRE Centre and the Open Society Justice Initiative, which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 5. A hearing took place in public in the Human Rights Building, Strasbourg, on 3 June 2009 (Rule 54 § 3). There appeared before the Court: (a) for the Government Ms Z. IBRAHIMOVIĆ, Deputy Agent, Ms B. SKALONJIĆ Assistant Agent, Mr F. TURČINOVIĆ, Adviser; (b) for the applicants Mr F.J. LEON DIAZ, Ms S. P. ROSENBERG, Mr C. BALDWIN, Counsel. The Court heard addresses by Ms Ibrahimović, Mr Leon Diaz, Ms Rosenberg and Mr Baldwin. The second applicant was also present at the hearing. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Relevant background to the present case 6. The Constitution of Bosnia and Herzegovina (hereinafter referred to as “the Constitution” or “the State Constitution” when it is necessary to distinguish it from the Entity Constitutions) is an annex to the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA JUDGMENT 3 Peace Agreement”), initialled at Dayton on 21 November 1995 and signed in Paris on 14 December 1995. Since it was part of a peace treaty, the Constitution was drafted and adopted without the application of procedures which could have provided democratic legitimacy. It constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language, English. The Constitution confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure. In accordance with the Constitution, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard (Article V of Annex 2 to the Dayton Peace Agreement). Pursuant to an arbitral award of 5 March 1999, the Brčko District has been created under the exclusive sovereignty of the State. 7. In the Preamble to the Constitution, Bosniacs, Croats and Serbs are described as “constituent peoples”. At the State level, power-sharing arrangements were introduced, making it impossible to adopt decisions against the will of the representatives of any “constituent people”, including a vital interest veto, an Entity veto, a bicameral system (with a House of Peoples composed of five Bosniacs and the same number of Croats from the Federation of Bosnia and Herzegovina and five Serbs from the Republika Srpska) as well as a collective Presidency of three members with a Bosniac and a Croat from the Federation of Bosnia and Herzegovina and a Serb from the Republika Srpska (for more details see paragraphs 12 and 22 below). B. The present case 8. The applicants were born in 1956 and 1943 respectively. They have held and still hold prominent public positions. Mr Sejdić is now the Roma Monitor of the OSCE Mission to Bosnia and Herzegovina, having previously served as a member of the Roma Council of Bosnia and Herzegovina (the highest representative body of the local Roma community) and a member of the Advisory Committee for Roma (a joint body comprising representatives of the local Roma community and of the relevant ministries). Mr Finci is now serving as the Ambassador of Bosnia and Herzegovina to Switzerland, having previously held positions that included being the President of the Inter-Religious Council of Bosnia and Herzegovina and the Head of the State Civil Service Agency. 9. The applicants describe themselves to be of Roma and Jewish origin respectively. Since they do not declare affiliation with any of the “constituent peoples”, they are ineligible to stand for election to the House of Peoples (the second chamber of the State parliament) and the Presidency 4 SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA SEPARATE OPINIONS (the collective Head of State). Mr Finci obtained official confirmation in this regard on 3 January 2007. II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Dayton Peace Agreement 10. The Dayton Peace Agreement, initialled at the Wright-Patterson Air Force Base near Dayton (the United States) on 21 November 1995 and signed in Paris (France) on 14 December 1995, was the culmination of some 44 months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It entered into force on the latter date and contains twelve Annexes. 1. Annex 4 (the Constitution of Bosnia and Herzegovina) 11. The Constitution makes a distinction between “constituent peoples” (persons who declare affiliation with Bosniacs1, Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood, or other reasons). In the former Yugoslavia, a person's ethnic affiliation was decided solely by that person, through a system of self- classification. Thus, no objective criteria, such as knowledge of a certain language or belonging to a specific religion were required. There was also no requirement of acceptance by other members of the ethnic group in question. The Constitution contains no provisions regarding the determination of one's ethnicity: it appears that it was assumed that the traditional self-classification would suffice. 12. Only persons declaring affiliation with a “constituent people” are entitled to run for the House of Peoples (the second chamber of the State parliament) and the Presidency (the collective Head of State). The following are the relevant provisions of the Constitution: Article IV “The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives. 1 Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” (Bošnjaci) should not be confused with the term “Bosnians” (Bosanci) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin. SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA JUDGMENT 5 1. House of Peoples. The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). a. The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation1. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska2. b. Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb Delegates are present. 2. House of Representatives. The House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska. a. Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement.